COURTS - especially federal courts - are supposed to be above politics. At least that's the ideal.
But a move to create a new United States Court of Appeals for the Northwest and Alaska reflects an ideological fracturing of the West over such matters as gun control, the death penalty, and environmental protection, while at the same time raising fundamental judicial questions.
At issue is the Ninth Circuit Court of Appeals, which is headquartered in San Francisco but covers a mammoth territory from the Arctic Circle to the Mexican border, from the Rocky Mountains to the Northern Mariana Islands in the south Pacific.
''The Northwest is dominated by California judges and California judicial philosophy,'' complains Sen. Slade Gorton (R) of Washington. ''The Northwest's interests cannot be fully appreciated or addressed from a California perspective.''
Senator Gorton and Sen. Conrad Burns (R) of Montana are pushing a measure that would split the Ninth Circuit, resulting in a new 12th Circuit Court of Appeals based in Seattle and covering Alaska, Idaho, Montana, Oregon, and Washington. A growing number of Republican lawmakers from the region are supporting the bill.
Senator Burns, a gruff former livestock auctioneer, is worried about ''an increase in legal actions against economic activities ... such as timbering, mining, and water development.'' He also charges that a backlog of appeal cases - including death-penalty cases - comes from Californians overloading the court.
''Montana citizens and businesses should not suffer because of California's legal problems,'' he says. To get attention in the Senate, Burns has blocked consideration of nominees to fill four vacancies (out of 28 judgeships) in the Ninth Circuit.
System guards against bias
But many federal judges and most Western Democrats in Congress, reject the notion that the present court of appeals is somehow biased against the interests of the more-rural West. They note that appointees to US District Courts, (the first level in the federal court system, where cases are tried before they can be heard in the circuit appeals courts) must be members of the state bar in which they are appointed. District Court judges sit in all 50 states, the District of Columbia, and US Territories and therefore should have a good understanding of local issues.
Critics of the Gorton and Burns proposal also dispute the assertion that the court's jurisdiction is so large - as big as Western Europe with nearly 50 million people - as to be unwieldy.
In recent Senate testimony, J. Clifford Wallace, chief judge of the United States Court of Appeals for the Ninth Circuit, acknowledged that ''it takes about four months longer to complete an appeal in our court as compared to the median national time.''
But the problem, Judge Wallace told the Senate Judiciary Committee recently, is not the size of the territory but the number of judges. ''I need more judges to set more panels,'' Wallace said. ''Then I can overcome all the unnecessary delay.''
Senate Democrats, including Harry Reid of Nevada and Dianne Feinstein of California, tweak their GOP colleagues for pushing a proposal that would cost nearly $40 million in construction costs for new facilities in Seattle and several million more each year in administrative expenses.
''It is somewhat ironic that we are proposing to undertake such an expensive change at a time when we are attempting to reduce federal spending,'' said Senator Reid, when the judiciary committee met to hear the bill.
A congressionally appointed commission in 1973 concluded that Courts of Appeal should have no more than 15 judges, and it recommended that the Ninth Circuit be split.
But the lead author of the report now says there is no need to do that. Referring to the belief that a large circuit is unwieldy, says professor Arthur Hellman of the University of Pittsburgh School of Law and lead author of the report, ''I think the Ninth Circuit has really disproven that proposition.
''The Ninth Circuit's experience over the past decade and a half demonstrates that innovative approaches to adjudication and administration can go far toward mitigating the problems of operating a large court....'' Besides, he says, ''It would be wrong to divide it to get different results'' in controversial cases.
Still, there is precedent for splitting a US Court of Appeals (whose three-member panels hear appeals of decisions from federal district courts and whose decisions, in turn, can be appealed to the Supreme Court).
In 1981, the 11th Circuit Court of Appeals (which covers Alabama, Florida, and Georgia) was split from the Fifth Circuit (which now covers Mississippi, Louisiana, and Texas).
Arizona left in cold
But the issue here may be more complicated than that - at least as far as political sensibilities are concerned.
Arizona, for example, would find itself and Nevada even more overshadowed by California in what would be left of the Ninth Circuit in the continental United States.
''Many of us in Arizona, myself included, agree wholeheartedly with the position [Gorton and Burns] have taken on some Ninth Circuit decisions involving the environment, capital punishment, and other issues,'' says Phoenix attorney Charles Jones, who spoke for the Arizona Bar Association at the Senate hearing and calls himself ''a very conservative Republican.''
''On the other hand,'' Mr. Jones adds, ''if you split the Pacific Northwest out and create a new 12th Circuit ... you effectively take the conservative heart out of the existing court and leave the state of Arizona to deal with a very liberal court headquartered in California.''
But the bottom line, says Jones, who has argued many cases before federal judges, is that regionalism should not be a factor in either determining which states are in a given Circuit Court of Appeals or the way cases are decided.
''It is not consistent with proved constitutional principles,'' he says, ''and it injects politics into the federal courts.''